Throughout Ohio, environmental groups and community activists increasingly are pressing local units of government to enact local “bans” of hydraulic fracturing and deep injection disposal wells that can accept well flowback. For example, on August 2 the Cincinnati City Council voted to bar injection wells associated with the disposal of waste from hydraulic fracturing; Yellow Springs and Niles have followed suit. And various organizations in southwest Ohio are urging state officials to prevent siting of disposal wells in the Great Miami aquifer. Proposed well bans also have been placed on the November ballot in Mansfield and Broadview Heights. Finally, Shalersville Township trustees are considering adopting a non-binding resolution expressing the township’s opposition to hydraulic fracturing.
The recent uptick in local activity has been driven largely by environmental groups such as the Community Environmental Legal Defense Fund , the Network for Oil and Gas Accountability and Protection, and Ohio Citizen Action, as well as various local citizen groups. Ohio local governments clearly retain some limited ability to regulate the effects of shale drilling activities, such as via noise regulations or other nuisance-related ordinances. However, it is questionable at best as to whether state law allows any of these measures to be implemented.
House Bill 278 was enacted in 2004. It designates the Ohio Department of Natural Resources’s (ODNR) Division of Mineral Resources Management as the sole authority over permitting and siting of Ohio oil and gas wells. Before HB 278 was enacted, Ohio localities were able to control whether and where oil and gas wells could be drilled through zoning and outright bans. And ODNR has always had primary regulatory authority over deep injection wells that receive brine from shale wells, under authority granted by the Safe Drinking Water Act.
Ohio’s regulatory structure governing oil and gas wells and deep injection wells is common among the states, and differs somewhat from recent changes made by its neighbor to the east, Pennsylvania. In 2012 the Pennsylvania legislature passed Act 13, which “preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts.” See 58 Pa. C.S. § 3303. It also bars local units of government from outlawing drilling in their zoning ordinances, and requires them to allow drilling in all zones – even residential. Recently the Pennsylvania Commonwealth Court (the state’s intermediate appellate court) overturned the portions of Act 13 that removed local zoning authority; the state has appealed this decision to the state supreme court.